India Legal - 13 January 2020

India Legal - 13 January 2020
NDIA EGALL STORIES THAT COUNT I January13, 2020 ParallelPowerCentres?TheKeralagovernor’ssupportoftheCAAandsimilarstatementsbyBJP-appointed governorsisaworryingsign.HasthetimecometoimplementtheSarkaria Commission’srecommendations? Lawless in UP Book Extract: The Cases India Forgot Arif Mohammed Khan, Kerala Bhagat Singh Koshyari, Maharashtra Jagdeep Dhankhar, West Bengal
HE ugly tug-of-war between the “state” of Delhi and the lieutenant governor (LG) that surfaced several years ago as Najeeb Jung tried to thwart the adminis- trative initiatives of Prime Minister Na- rendra Modi’s arch political foe Arvind Kejriwal seems finally to be coming to a head. But not in the nation’s capital where Article 239AA (of the Cons- titution), unique to Delhi, prima facie appears to give more power to the lieutenant governor unlike other Union Territories. This time, the controversy is threatening to snowball into a national constitutional crisis with states threatening not only to refuse to implement a law passed by Parliament but also the primacy of the central government to implement legislation. The fire has been lit by several states whose chief ministers, heeding unprecedented nationwide protests, have proclaimed that they would refuse to implement the Citizenship (Amendment) Act (CAA), National Register of Citizens (NRC) and the National Population Register (NPR) on the ground that these measures violate the basic struc- ture of the Constitution. In fact, the Kerala state legislature, in a rare display of bipartisan unity, threw the gauntlet, passing a resolution to this effect in the legislative assembly. Kerala Governor Arif Mohammed Khan, in what appeared to be a blatant political statement, slammed the assembly resolution as illegal and unconstitutional, asserting citizenship was governed exclusively by the centre. This appears to be the newest match in the tinderbox which has ignited a fierce debate on the very nature and idea of India: Is this a union of states which came into being under special treaties with over 560 small and large independent king- doms after India gained freedom from the British, with varying degrees of autonomy carved out under central, concurrent and state laws? Or is this autonomy subject to the goodwill and constitutional morality exercised by the centre and can be snatched away at a whim by a majoritarian government by simply declaring President’s Rule under Article 356 or, heaven forbid, stripping the state of its statehood and converting it into a Union Territory as in the case of Jammu & Kashmir? Could the central government exercise this power—invoked under the provision of a break- down of the constitutional order—against a state refusing to implement CAA-NRC-NPR? The matter seems headed for the courts which must, perforce, draw a fair and workable line between the constitutional powers and their perfunc- tory misuse by a governor and the legitimately constituted authority of a chief minister who draws his authority to govern from (WE) the people. The question arises of where true sovereignty resides. Agreed, Delhi is a special case: it is the seat of India’s central governance, with its own set of law and order compulsions arising from the presence of international embassies, the residence of the President of India as well as Members of Parlia- ment and an assortment of VIPs. It possibly needs a stronger central role in managing its affairs than other states. The “balance” is ultimately what the court will look for. On a wider constitutional canvas, the issue is really about cooperative federalism on which the Indian nation was glued together. Founding Fathers Jawaharlal Nehru and BR Ambedkar were extremely wary that governors’ powers to dismiss popular state governments under Article 356 would be misused and politicised. They insisted these powers be curtailed or used only in the rarest of rare cases like a total constitutional meltdown. The Founding Fathers envisaged governors to be the agents of the constitutional central polity and not the handmaidens of any political party. This precept has been abused ad infinitum, ad nauseam by all political parties. It is indeed encouraging to see that the Supreme Court has not shied away from attempting to grapple with an issue that goes to the very root of Indian federalism. THE TINDERBOX Inderjit Badhwar T Afirehasbeenlit byseveralstates whoseCMshave proclaimedthey wouldnotimple- mentCAA,NRCand NPR.Thematter seemsheadedfor thecourtswhich mustdrawafair linebetweenthe constitutional powersandtheir misusebya governorandthe legitimately constitutedauthor- ityofaCM. Letter from the Editor 4 January 13, 2020 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
Sabka Saath-Sabka Vikas-Sabka Vishwas Social Audit Rising Steps Important steps taken by the Government of Uttar Pradesh to ensure transparency, public participation and accountability in the implementation of Government of India/State Government schemes to all sections of society To ensure transparency, public participation and accountability in the work of Gram Panchayats and other executing organizations. Monitoring of accounts with physical verification of works, participation and monitoring of society To ensure the benefit of schemes reaches all sections of society To make aware public of their rights, duties in the schemes Social audits of 20,887 gram panchayats were conducted in the year 2018-19. In the year 2019-20, social audit was conducted in more than 16 thousand gram panchayats till September, 2019. The target is to conduct social audit in all gram panchayats of the state by March 31, 2020. Through public awareness rallies, placing hoardings on all development buildings, involving schoolchildren in awareness rallies, scooter motorcycle rallies, sharing information through folk songs, pamphlets and loudspeakers before the social audit meetings, the common people were connected to a transparent process like social audit leading to increased public participation Through social audits, people succeeded in raising their voice by coining the slogans like “Mera Kam Mera Daam” “Mera Paisa Mera Hisab”. Schemes like MNREGA- Pradhan Mantri Awas Yojana brought qual- itative changes in the standard of living of the villagers and they managed to air their views through a democratic platform. Social audit is a continuous process. According to the calendar available on the website of the Directorate, http://socialauditup.in, contribute to ensure accountability by making active participation in the meeting of the Social Audit Gram Sabha of the respective Gram Panchayats and make the social audit more public utility. Why social audit? Progress so far Appeal to public Efforts made for public awareness TEST AUDIT The test audit is conducted by the directorate to maintain the quality of social audit. RAJENDRA PRATAP SINGH (MOTI SINGH) Minister, Rural Development Department, Uttar Pradesh What we achieved RAJENDRA PRATAP SINGH (MOTI SINGH) Minister, Rural Development Department, Uttar Pradesh Issued in the public interest by the Directorate of Social Audit, Uttar Pradesh-Rural Development Department, Uttar Pradesh.
ContentsVOLUME XIII ISSUE9 JANUARY13,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 January 13, 2020 India’s economic environment has uncanny similarities with the Asian crisis which impacted stock markets and currencies across the region. Without bold action, we face a similar situation Is a 1997 Asian Crisis Looming? ECONOMY Kerala Governor Arif Mohammed Khan’s public support for the Citizenship (Amendment) Act and similar actions by BJP-appointed governors is a worrying sign. Has the time come to implement the Sarkaria Commission’s recommendations? Parallel Power Centres? 12 16 LEAD
Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE | INDIA LEGAL | January 13, 2020 7 REGULARS Ringside............................8 Is That Legal...................10 International Briefs..........36 Media Watch ..................50 Scandalous Cover-up The lack of big names in the charge sheet filed in the honey-trap case in MP fuels speculation whether the Kamal Nath government has the courage to act against the rich and influential MYSPACE GLOBALTRENDS In tune with a Supreme Court judgment, the prosecution wing of J&K has been separated from the state police and made an independent entity so that it can work objectively Cut to Size The attacks by Pakistan’s law minister and other officials against Justice Waqar Seth, who sentenced Gen Musharraf to death, may have handed India a new opening in the Jadhav case STATES 22 An extract from The Cases That India Forgot, a book by constitutional expert Chintan Chandrachud. It chronicles 10 dramatic legal cases that have faded from public memory History in the Making BOOKS The UP police has cracked down on CAA protesters and mind- lessly arrested many with no proof of illegality. Some have been charged with IPC sections and asked to pay hefty penalties Lawless in UP 28 38 42 SPOTLIGHT The National Pharmaceutical Pricing Authority has hiked the prices of 12 life-saving essential drugs to ensure their availability as manufacturers were unable to sustain productivity The Price of Health 32 FOCUS Three cases have been lodged against Bollywood personalities Raveena Tandon, Farah Khan and Bharti Singh for allegedly hurting the religious sentiments of a community on a TV show Starry Trouble 34 Judging the Judge 46
8 January 13, 2020 Anthony Lawrence RINGSIDE The OppositionThe Opposition
ISTHAT How is detention of a person different from an arrest? When law-enforcing agencies restrict the freedom of movement of people for a brief period by keeping them in a police station (left), it is called detention. How- ever, they are not formally accused of an offence. The grounds for detention could be reasonable suspicion, investigation or interrogation. On the other hand, a person is arrested if there is a charge of offence against him. The police must state the offence for which he has been arrested. He must be produced before a magistrate within 24 hours of the arrest. An arrested person has the right to consult a lawyer. A detained person, however, does not enjoy such rights. An arrested person must apply for bail for his release. In case of detention, the police will release the person once they are satisfied with the interrogation or investigation. — Compiled by Ishita Purkaystha What the Law Says What are draft charges? An accused is tried in court based on charges framed on offences alleged to have been committed by him. When the investigation in a case is underway, the prosecution submits “draft charges”, which can be considered a preliminary submission before the court on the offence/s an accused is charged with and is facing trial, in case he pleads “not guilty”. The prosecution, thus, records an appearance in court while still reserving its right to file a revised or more detailed and accurate charge sheet. ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Is consuming alcohol inside a private vehicle an offence? If a person is caught by the police consuming alcohol inside a moving vehicle, including at traffic signals, it is an offence punishable under the Motor Ve- hicles Act, 1988. The person can be prosecuted for drink-driving if the breathalyser test shows more than 30 mg of alcohol per 100 ml of his blood. Further, the act of consuming alcohol in a car is also punishable if the vehicle is parked in a “public place” in Bihar, Gujarat, Mizo- ram, Nagaland and the UT of Lakshadweep where drinking in public places has been banned by the administration. The drink- driving law does not exempt vehicles passing through a state or anyone feign- ing ignorance of the law after the breathalyser test. The Problem of Drink Driving To what extent is “the right to protest” accept- able in law? The right to protest is the manifestation of the fundamental rights related to freedom of expression, freedom of assembly and freedom of ass- ociation, subject to the reasonable restrictions under Article 19(2), (3), (4) and (5) of the Cons- titution. As long as any form of protest does not break an existing law, say, a magistrate’s order of Section 144 in the area, or does not turn violent leading to van- dalising of public property, or committing sedi- tion, etc, a democratic government must allow protests against its policy or a law framed. The right to protest is viewed as a healthy democratic option against majoritarian rule. Preliminary Submission Before Courts A Fundamental Right 10 January 13, 2020
Daughters are the pride of home Take full care of their education and health Mukhyamantri Kanya Sumangla Yojana Schemecategoriesandfunds First grade ` 2000/- on the birth of a child Permanent residence certificate of Uttar Pradesh Annual Family Income of more than Rs 3 Lakh Benefit of the scheme limited to maximum 2 girls Maximum two children in a family Second grade ` 1000/- on full immu- nization till one year Third grade ` 2000/- on admission in Class-1 Fourth grade ` 2000/- on admission in Class-6 Fifth grade ` 3000/- on admission in Class-9 Sixth grade ` 5000/- on admission in graduation or in diploma courses of more than 2 years after completion of 10th/12th standard Qualificationsfortheschemeeligibility Application procedure Girl child herself (if adult), parent or guardian can be applicant Online application - Apply through the Common Service Centers / Cyber Cafe / own smartphone or computer etc. by logging in to https://mksy.up.gov.in or contact the office of the District Probation Officer of your district Beti Bachao Beti Padhao Women Welfare Department, Uttar Pradeshhttps://mksy.up.gov.inCar drivers should wear seat belts
Lead/ Column/ Governor’s Role Shaan Katari Libby ERALA Governor Arif Mo- hammed Khan stirred up a row recently with his defence of the Citizenship (Amend- ment) Act (CAA) at the In- dian History Congress in Ka- nnur. His defence in a state that has vo- ted to keep out the CAA drew sharp protests from some in the audience. He then proceeded to describe those protesting against the new citizenship law: “You are potholes filled with dirty water which is stinking,” who were left behind in India after Partition. “My duty as governor is to defend any law,” he said. This was “a sacred duty”, he added. He spoke about how Gandhiji was criticised too— although the relevance of bringing Gan- dhiji into this is somewhat unclear. The governor then alleged that 88-year-old historian Irfan Habib, a staunchly secular person, had simultaneously attempted to assault him. Leave aside the unparliamentary lan- guage, this brings into question the constitutional duty of a governor. Governors have similar powers and functions at the state level as those of the president at the Union level. Governors exist as nominal heads, whereas real power lies Parallel Power Centres? KeralaGovernorArifMohammedKhan’sactofsupportingtheCitizenship(Amendment)Actis beingseenasdivisiveandanti-constitutional.HasthetimecometoimplementtheSarkaria Commission’srecommendations? K AGENT OF THE CENTRE? Kerala Governor Arif Mohammed Khan addressing the Indian History Congress in Kannur twitter.com 12 January 13, 2020
with chief ministers and the council of ministers. Articles 157 and 158 of the Constitution specify eligibility require- ments for the post of governor. Among these, it is clearly stated that a governor must not be a member of either House of Parliament or of the state legislature. In other words, a governor is not a politician. Every governor takes an oath under Article 159. This is done in the presence of the chief justice of the concerned High Court and involves swearing in the name of God that he/she solemnly affirms that he/she will faithfully execute the office of governor of the state and will to the best of his/her ability preserve, protect and defend the Constitution and the law and devote himself/herself to the service and well-being of the people of the state. The governor also has rights under Article 200 with respect to giving assent to bills, but ultimately, he is obliged to give his assent even if it is returned unchanged. Under Article 213, the governor has the power to promulgate ordinances when the legislature is in recess, but they are liable to be void if they would not have passed muster as Acts. All actions, recommendations and supervisory powers are in order to implement the provisions of the Constitution. A governor has executive powers related to administration, app- ointments and removals. He appoints the chief minister, who enjoys the support of the majority in the legislative assembly, and also the council of ministers and sees to the distribution of portfolios on the advice of the CM. Whi- le the council of ministers remains in power during the “pleasure” of the governor, it means as long as the majority in the legislative assembly supports the government. The governor also appoints the advocate general and the chairman and members of the State Public Service Commission. The president consults the governor during the appointment of judges of the High Courts and the latter appoints the judges of the district courts. The governor is also the chancellor of most of the universities in the state. The dignity and impartiality of the office of the chancellor puts the gover- nor in a unique position with regard to protecting the autonomy of the universities and saving them from undue political interference. The governor is, thus, intended to be a neutral entity, acting as a check on the power of the state and ensuring that areas such as courts and universities remain sufficiently removed from the influence of the Union government’s agenda or that of the state government. A governor is not meant to enter into politics. The day-to-day role is often cer- emonial and restricted to being the chief guest at functions, to giving inspiring speeches to students, to establishing whether a majority exists in the assembly for a proposed chief minister and to then formally inviting the said per- Everygovernortakesanoathunder Article159topreserve,protectand defendtheConstitutionandthelawand devotehimself/herselftotheserviceand well-beingofthepeopleofthestate. NO POLITICAL ROLE The oath-taking ceremony of a governor. The post constitutes a nominal head | INDIA LEGAL | January 13, 2020 13
son to form the government. Following this, the governor has no political role. There have been anomalies, of course, where governors have overstepped their remit. The Congress has done this numerous times, so also the Janata Dal. Some say it is impossible for a governor to remain far removed from the centre. Sibranjan Chatterjee in his article on the role of the governor published in the Indian Journal of Political Science, does a detailed analysis of governors. Appa- rently, in 1970, following withdrawal of the support of the Jana Congress from the Swatantra-led coalition government in Orissa, the chief minister, RN Singh, resigned—and instead of accepting his suggestion of dissolving the House, the governor took over the reins of the state government for a brief period. This was unprecedented. More recently, we have observed how governors were used to impose President’s Rule in Arunachal Pradesh and Uttarakhand under JP Rajkhowa and KK Paul, respectively. And how in November 2019, Maharash- tra Governor Bhagat Singh Koshyari imposed and then lifted President’s Rule abruptly to invite a minority BJP government to be formed. This failed when it turned out that the Congress- NCP-Shiv Sena alliance had the clear majority. A governor is in a truly unique position—he/she is not an elected person for a reason and is meant to maintain a dignified neutrality. This is not an easy role as it requires the governor putting his post on the line— he runs the risk of being sacked or moved to another state. Very few governors actually get to complete their terms, according to the Sarkaria Com- mission report of 1983 (under the Chairmanship of Justice RS Sarkaria with B Sivaraman and Dr SR Sen). The report recommended several changes in the appointment of a gover- nor: that he should be an eminent person; from outside the state, who must not have participated in active politics at least for some time before his appointment; he should be a detached person and not too intimately connected with the local politics of the state; he should be appointed in consultation with the chief minister of the state, vice-president of India and the speaker of the Lok Sabha. More importantly, his tenure of office must be guaranteed and should not be disturbed except for extremely com- pelling reasons and if any action is to be taken against him, he must be given a reasonable opportunity for showing cause against the grounds on which he is sought to be removed. In case of such termination or resignation of the gover- nor, the government should lay before both the Houses of Parliament a statement explaining the circumstances leading to such removal or resignation, as the case may be. Finally, after demitting office, a governor should not be eli- Lead/ Column/ Governor’s Role/ Shaan Katari Libby STAND-OFF WITH THE GOVERNMENT West Bengal Governor Jagdeep Dhankhar addressing the media after his car was denied entry into Kolkata’s Jadavpur University by TMC supporters twitter.com/jdhankhar1 14 January 13, 2020
gible for any other appointment or office of profit under the Union government or a state one except for a second term as governor or election as vice-president or president of India, as the case may be. At the end of his tenure, reasonable post- retirement benefits should be provided. T he Commission felt that the state government should be given pro- minence in appointing the gover- nor. The appointment should be made from a panel to be prepared by the state legislature and the chief minister should be consulted as there has to be a personal rapport. The general practice, however, seems to be that the Union government merely informs the chief minister that a certain person is being appointed as the gover- nor of the state. Some of the recommendations have been adopted, including the governor being from outside the state. The Supreme Court has many times emphasised the urgent need for implementing the Sarkaria Commi- ssion’s recommendations on selection and appointment of governors. There are some offices which are meant to be completely neutral: gover- nor, president, the judiciary. If these crucial entities merely follow the will of the centre, then we have no separation of powers anymore. In the case of Kerala Governor Arif Mohammed Khan, he displayed repeated and fervent support for the government policy of CAA. However, the Ker- ala state legislature has rejected the CAA, National Register of Citizens, Na- tional Population Register and detention centres as blatantly divisive and anti-constitutional. Far from being in step with the state government law, Khan was eagerly pandering to the central government in a public forum. It is disappointing when people in such important constitutional roles do not manage to maintain their neutrality. It is the governor’s role and sacred duty to defend the Constitution. Article 19(1)(a) confers the right to freedom of speech and expression. India is also a secular democracy—something that des- perately needs defending. Khan defend- ed neither. The perception should never be that the governor’s office is being used to further the interests of the rul- ing party. Perhaps the time has come to implement the recommendations of the Sarkaria Commission—but who will be bold enough to suggest it? — The writer is Barrister-at-Law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With inputs from Tarun M Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com QUESTIONABLE CONDUCT (Clockwise from left) Maharashtra governor BS Koshyari, JP Rajkhowa, former governor of Arunachal Pradesh, and KK Paul, former governor of Uttarakhand | INDIA LEGAL | January 13, 2020 15
Economy/ New Year Prediction S we turn into a new year, here is a prediction for the Indian economy. Econo- mic predictions are noto- riously difficult because, unlike in the physical sci- ences, controlled experimentation is not possible. But there are now enough episodes in economic history to find similarities and to allow for causal interpretations. One such episode is the uncanny similarity between India’s current economic environment and the Asian crisis that started in Thailand in 1997, a crisis that within a very short period plunged stock markets and currencies across seven East Asian countries. Hundreds of banks, builders, and manufacturers went bankrupt. The Thai baht, Indone- sian rupiah, Malaysian ringgit, Phili- ppine peso and the South Korean won depreciated by between 40 percent to 80 percent. All this happened despite the fact Is a 1997 Asian Crisis Looming? India’seconomicenvironment hasuncannysimilaritieswith theAsiancrisiswhich plungedstockmarketsand currenciesacrosstheregion. Withoutboldaction,itfacesa similarsituation By Sanjiv Bhatia A FINANCIAL MESS Banks in Thailand failed and its currency (right) collapsed during the 1997 Asian crisis 16 January 13, 2020 centralbanking.com pixabay.com
that Asia’s fundamentals looked good: inflation was low; fiscal deficits remained largely within limits; the existence of independent and well-run central banks; relatively high domestic savings (albeit dropping); a large and growing middle class; an educated workforce (paid relatively low wages); a vibrant entrepreneurial class and a stable political environment. But these fundamentals painted a false picture. Underneath the seeming calm, investors were getting concerned about serious structural defi- ciencies and policy inconsistencies. We- akening export growth, increasing trade and fiscal deficits, high short-term foreign debts and financial systems that were rotten to the core were creating a heightened sense of uncertainty among investors. The unwinding of the 1990s boom and the eventual crisis suffered by the East Asian countries were a complicated and multifaceted process. Four significant elements precipitated the sequence of events that led to the crisis. And there is an eerie similarity to conditions that currently exist in India and maybe a harbinger of things to come in 2020. MORAL HAZARD & CRONY CAPITALISM Moral hazard is a term used to describe a tendency to take on more risk than is warranted, given the knowledge that one is protected against any loss. This was at the heart of the Asian crisis. The governments in the affected countries directly or indirectly controlled the commercial banking system, and this all- owed the banks to operate injudiciously with the knowledge that the state would protect the downside. The South Korean government, for example, directed the banking system to lend to companies that it viewed as economically strate- A DOWNSLIDE (From top) Similar to the Asian crisis, exports in India have dropped by 2.2 percent and key sectors like gems and jewellery, ready-made garments and petroleum have posted negative growth | INDIA LEGAL | January 13, 2020 17 UNI UNI UNI
gic. As a result, financial institutions were encouraged into funding risky projects with little regard for their profitability. This problem was compounded by crony capitalism, where people favourably connected with the government were able to borrow large amounts of money without proper due diligence. Without the discipline that free capital markets impose on bank lending, the result was overinvestment and inflation in the prices of assets in short supply such as real estate. India has a similar legacy of state- run banks with investment directed by the government. Currently, through the public sector banks, the government controls 70 percent of the banking assets. And through its mandated statu- tory buying of government securities (SLR) and state-directed priority lending, it sucks up roughly 47 percent of national savings. Mudra loans are an excellent example of misdirected government-mandated lending as it causes banks to over-lend to risky borrowers, which in turn leads to bad loans and ev- entually to fiscal deficits when the government uses tax revenues to recapital- ize failing banks. Excessive state intervention in the capital allocation process and the associated policies of implicit guarantees combined with crony capitalism and lax banking supervision were significant factors in the 1997 Asian crisis. These same conditions exist in India and have led to poor credit decisions and a massive misallocation of resources. This reckless lending has created a large stock of non-performing loans, posing a high risk to the banking system. EXPORT COMPETITIVENESS Till 1990, India was a relatively closed economy with less than 15 percent of its GDP coming from international trade. This changed dramatically after the 1991 liberalization reforms. By 2011, almost 56 percent of the country’s GDP was associated with trade. During this period, India’s exports grew dramatically, clocking an annual growth of 25 percent in 2007. This was very similar to the East Asian countries before the 1997 crisis. Those economies saw fast economic growth fuelled by large increases in exports. But the party ended when Chi- na entered the global market, affecting exports from Thailand, Malaysia, South Korea and Indonesia. The rise of the dollar, to which their currencies were pegged, made things worse. Exports started to plunge as these countries became less competitive. Capacity utiliza- tion rates and profits on huge investments in production capacity started to plunge. The Asian central banks res- ponded to this loss of export competitiveness by devaluing their currencies, providing speculators with an incentive to attack those currencies almost simultaneously and forcing another round of devaluations. India faces a similar deterioration in exports. In the first seven months of this year, exports dropped by 2.2 percent. Key export sectors such as leather, gems and jewellery, ready-made garments and petroleum have all posted negative growth for four consecutive months and the end is nowhere in sight. From 2003 to 2014, India’s exports grew at an annual rate of 17 percent, but over the last five years, the growth rate of exports dropped to a mere 0.9 percent per year. In contrast, exports from other countries that are competitors of Indian products grew at an annual rate of 20 percent over these five years. Bangladesh garment exports have increased by 40 percent in the past five years while In- dia’s have dropped by 6 percent in the last two years. India’s export deterioration is remi- niscent of the drop suffered by the East Asian countries in the period leading up to the 1997 crisis. In 2013, exports acc- ounted for almost 26 percent of India’s GDP, but today that number is close to 18 percent—a steep drop. Let’s hope that the RBI doesn’t react by forcing a deval- uation of the rupee. That could invite the same speculative attacks on the rupee that precipitated the Asian crisis. Accompanying this decline in exports is a sharp deterioration in terms of trade—calculated as the value of exports as a percent of the value of imports. ProfitabilityofcorporateIndiahasbeen decliningconsiderably.Wheneconomic growthslowsdown,andcompaniesdon’t makeenoughprofitstoservicetheir debts,thingsstarttounravel. Economy/ New Year Prediction 18 January 13, 2020 udayraj.com
Inarecentarticle,ArvindSubramanian, theformerchiefeconomicadvisortothe government,calculatedthatthecostof debtforIndianbusinessesnowexceeds theirprofitgrowthby4.3percent Increasing terms of trade suggest that a country can buy more imports from the sale of its exports. All the major East Asian countries experienced a sharp increase in terms of trade till about 1996, after which there was a sudden decline as the prices on the goods they imported (oil) increased, while at the same time, prices of their electronics and semi-conductors exports declined. India faces a similar situation. Its terms of trade increased by over 20 percent from 2006 to 2011 but have now dropped back to the pre-2006 levels. India’s exports are just not competitive globally and a depreciating currency makes imports more expensive. CORPORATE LEVERAGE & GOVERNANCE There was a pattern of increased vulner- ability to capital market shocks that em- erged among the Asian countries prior to the 1997 crisis. Companies were high- ly leveraged and when profits started to drop, their ability to service debt was severely compromised. Indian companies currently suffer from the same ma- laise. In 1997, the average debt-to-equity ratio of companies in the five countries most affected by the crisis was 85 percent—very similar to the current debt ratio for Indian companies which stands at 88 percent. And profitability of corporate India has been declining, down from a high of 7.1 percent of GDP in 2007 to now only around 2.7 percent. When economic growth slows down, and companies don’t make enough profits to service their debts, things start to unravel. In a recent article, Arvind Subramanian, the former chief economic advisor to the government, calculated that the cost of debt for Indian businesses now exceeds their profit growth by a staggering 4.3 percent and the share of debt owned by companies that cannot service their debt has risen to 45 percent. This is eerily similar to the situation for companies in the Asian countries in 1997. There was also a sizeable maturity mismatch in the balance sheets of financial institutions in countries like Korea, Malaysia and Thailand. Short-term debt was being used to finance long-term projects. The problems associated with mismatched liabilities and overleverag- ing were exacerbated by poor corporate governance. Similar mismatches exist in India. Last year, the IL&FS crash, which has had a considerable impact on lending by the non-banking financial sector, was precipitated by the same set of problems—mismatched balance sheets compounded by poor governance. REAL ESTATE BUBBLE Financial excesses inevitably lead to asset bubbles. Typically, a financial cycle is generated by waves of optimism (greed) that result in the underestimation of risk, overextension of credit, excessive price inflation in real assets and buoyant consumer expenditures. Real estate plays a central role in this cycle because it allows banks to lend larger amounts against increasing property values. With rising prices, the value of bank capital increases commensurate with their holding of real estate denominated assets, allowing them to lend even more. The dramatic turnaround in the fortunes of the East Asian countries from high seven percent growth rates to economic stagnation was preceded by a sharp deterioration in the performance of the real estate sector. A massive con- struction boom during the eighties and nineties created a huge oversupply of properties and when the real estate bubble burst in countries like Thailand and Malaysia, there were large losses in the unregulated shadow banking sector. India has also experienced a large real estate bubble that started around 2003 with massive investments by developers in housing projects. Rising real estate prices kept feeding into this, and both the regulated and the unregulated banking system poured increasing amounts of capital into this sector. But as with every asset bubble, the underlying fundamentals did not support the run-up in prices. Incomes did not match asset valuations and soon the real estate bubble burst. Unsold inventory in the top eight cities has risen to nearly 10 lakh units by June 2019, compared to annual sales of just over 2 lakh units. In other words, there are four to five years of sales in inventory, which means there is unlikely to be much capacity expansion in the real estate sector in the foreseeable future. Also, the existing inventory will need to be financed. But after the IL&FS crash, there has been a sudden and deep collapse in NBFC lending— which provides almost 55 percent of total real estate financing. Developers are finding it difficult to stay afloat and we are beginning to see bankruptcies among large developers which will add to the stress in financial markets. This is similar to what precipitated the 1997 Asian crisis. THE ENDGAME When an asset bubble bursts, it starts | INDIA LEGAL | January 13, 2020 19
the dominoes falling. As asset prices fall, so do their collateral values. NPAs begin to increase and when investors realize that the government does not have the resources to bail out banks, confidence drops. By the end of this fiscal year, the government of India will have poured in `3.5 lakh crore to bail out India’s failing public banks—a massive cost to the tax- payers. Investors know that this will soon end because the government faces a massive fiscal crisis of its own. The combined fiscal deficit of all government entities (central, state and PSUs) is expected to reach 8 percent of the GDP— among the highest in the world. Recent surveys by the RBI are already showing steep declines in both business and consumer confidence. As confidence declines, foreign capital starts to flee, the currency depreciates, exports drop and growth slows down dramatically. All these are now beginning to happen in India. The only way out as Confucius put it, ‘‘is through the door’’. The strategy the East Asian countries adopted was to quickly and methodically restructure their financial systems by shutting down and selling failing state-run banks and disposing the collateral underlying the bad loans. The key to India’s recovery is also a massive institutional shakeup of the financial system. Merging failing public sector banks will only aggravate systemic risk. These banks need to be shut down, and government intervention in, and regulation of, capital markets should immediately be reduced to a minimum. The RBI needs to clear the overhang of bad loans in one swell swoop by buying the roughly `9.5 lakh crore in bad loans from the commercial banks and transfer them to its balance sheet. This will give a tremendous boost of confidence to the capital markets. Once the pipeline is cleared of the NPA junk, capital can start flowing again and the economy can start producing goods and services again. Without bold and immediate action to restore confidence in the financial system, India faces a 1997 Asian crisis of its own in 2020. —The writer is a financial economist and founder, contractwithindia.com Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com India,liketheAsiancrisis,hasalso experiencedalargerealestatebubble thatstartedaround2003.Unsold inventoryinthetopeightcitieshasrisen tonearly10lakhunitsbyJune2019. Indiaalsoneedsamassiveinstitutional shakeupofitsfinancialsystem.Merging failingpublicsectorbankswillonly aggravatesystemicrisk.Thesebanks needtobeshutdown. Economy/ New Year Prediction 20 January 13, 2020 Anil Shakya UNI
Books/ Extract/ The Cases That India Forgot/ Chintan Chandrachud HE next case considered in this book offers a heady combination of high political drama and significant ques- tions of constitutional law. The Rameshwar Prasad case, and the circumstances surrounding it, involves no less than two state elections, midnight phone calls to Moscow, two Sup- reme Court decisions (one of them under five pages, the other close to five hundred), resignations and near-resignations, and hideaways in Jamshedpur. An Incisive Look Constitutional expert Chintan Chandrachud tells the stories of 10 extraordinary and dramatic legal cases, from the 1950s to the present day, that have all but faded from public memory. The book has a cast of characters that includes the who’s who of the Indian legal system. It also paints an unexpected picture of the Indian Judiciary—the courts are not always on the right side of history or justice, and they don’t always have the last word on matters before them. An extract of one of the chapters of the book—Rameshwar Prasad v Union of India: T 22 January 13, 2020 Photos: UNI
NDA on the one side and the RJD- Congress combination on the other, chose not to extend support to either. Singh therefore wrote to the Presi- dent of India recommending that President’s rule be imposed in Bihar, with the assembly being kept in a state of ‘suspended animation’ (this meant that although the assembly would not be dissolved, it could not transact any business). The idea was that this course of action would leave more time and space for discussions and political realign- ments. The President accepted this recommendation, resulting in Bihar effectively being administered by the United Progressive Alliance (UPA) government in New Delhi. T he process of political realign- ments envisaged by the governor was then well and truly set into motion. First, the group of seventeen independent MLAs declared their support for the NDA. Three other parties, each holding a small number of seats, followed. This took the NDA close to securing a majority in the assembly. However, in order to attain a majority, it became clear that the NDA would still require the support of some LJP or RJD or Congress MLAs. Rumours ran rife, as over a dozen MLAs from the LJP—seq- uestered in resorts just outside Jam- shedpur—were apparently being ‘indu- ced’ to pledge their support to the NDA. As these events were playing out, Singh sent two further reports to the President. The first was sent on 27 April 2005. The governor warned that the BJP and the JDU were making concert- ed efforts to win over MLAs from the LJP through ‘various means’. This ‘unprincipled and opportunistic realign- ment’ was undesirable and would distort the mandate of the electorate, the gover- nor said. The governor concluded with the warning that in order to avoid any further horse-trading, there may be no choice but to organize a fresh round of elections in Bihar. Singh’s next report to the President was sent about four weeks later, on 21 Lalu Prasad Yadav had administered Bihar for nearly fifteen years by the time the state assembly elections came around in February 2005. He did so directly as chief minister of the state for roughly the first half of that period. For the second half, he governed the state by proxy through his wife, Rabri Devi, who assumed the position following his resignation prompted by corruption charges. Anti-incumbency was running high, and internal rebellions within Yadav's Rashtriya Janata Dal (RJD) were expected to impact its electoral fortunes. Aside from the incumbents, at least four other political parties had credible aspirations of securing a substantial number of seats in the assembly. They were the Bharatiya Janata Party (BJP) and the Janata Dal United (JDU)—both part of the National Democratic Alli- ance (NDA), the Lok Janshakti Party (LJP) and the Congress. The Bihar | INDIA LEGAL | January 13, 2020 23 Legislative Assembly had 243 seats, making 122 the magic number required to secure an absolute majority in the assembly and form a stable government. However, that number proved elusive. The elections yielded a hung assembly, with no party or alliance within striking distance of the magic number. The NDA secured ninety-two seats, while the RJD, the LJP and the Cong- ress secured seventy-five, twenty-nine and ten seats respectively. Six other political parties secured at least one seat, and seventeen independent candidates were elected. The governor of a state assumes heightened responsi- bility in circumstances where there is a hung assembly, as he has the authority to invite those that are most likely to cobble a majority to form the government. The role of Buta Singh, Bi- har’s governor, therefore became crucial following the election results. Singh was ‘no novice to politics’ and had aligned with different political forces over the years—including as home minister in Rajiv Gandhi’s Congress government and communications minister in Atal Bihari Vajpayee’s NDA government. Singh held a series of meetings with political parties in the days after the election results were declared. However, he concluded that no party or alliance was in a position to mobilize a majority in the assembly. This was predominantly because the LJP, which could effectively play the role of kingmaker between the FourpetitionswerefiledintheSC bythose electedtothedissolved assembly,sayingthePresident couldn’tdissolveanassembly thatwasnotyetconvened. WANING FORTUNES Lalu Prasad Yadav (above) ruled Bihar for around 15 years till the 2005 Bihar polls
sign if the file were sent back to him. Alternatively, he could have waited until he returned to Delhi—but this would have involved a delay of eight days. In that time, it was likely that the government would be formed in any event. The third option was simply to sign the file, in spite of any misgivings about whether it was appropriate to dissolve the assembly in the circumstances. In a decision that he would live to regret, Kalam chose option three. T he Bihar Assembly was dissolved within hours, and pandemonium broke loose. Ram Vilas Paswan, the president of the LJP, expelled seven of his colleagues for anti-party activities. The BJP organized dharnas and road blockades in the state following the announcement. Describing the dissolution as a ‘fraud on the Constitution and murder of democracy’, it organized a fairly successful statewide strike in protest the next day. Senior leaders from the NDA demanded early elections in a meeting with the Election Commission. Now that the assembly had been dissolved, the NDA didn’t want the UPA to govern Bihar through President’s rule and wanted fresh elections called at the May 2005. By that stage, the governor observed, one LJP MLA had already moved across to the JDU, with a large group of seventeen to eighteen MLAs expected to follow suit upon being offered allurements. The governor therefore recommended that the assembly be dissolved and fresh elections be called in the state. The UPA government formally rec- eived the governor’s report the next day. The rumour on the street was that the BJP and the JDU were on the brink of staking claim to the government. The UPA government had just concluded its one-year anniversary celebrations, and an emergency cabinet meeting was called at 11 p.m. that evening to consider Singh’s report. The cabinet swiftly accepted the governor’s recommendation and forwarded it to President A.P.J. Abdul Kalam for his assent. The Presi- dent’s assent was required for the dissolution of the assembly and the calling of fresh elections. As it happened, Kalam was in Moscow that evening as part of a four-nation official visit to Russia, Ice- land, Switzerland and Ukraine. Kalam was woken up in the middle of the night in his room at the Kempinski Hotel with a request to sign on the dotted line. The UPA presumably wanted to avoid the formation of a BJP-JDU government at all costs. Ordinarily, a government may have waited for the President to return from his foreign trip or, at the least, left more time for the President to consider the file. Absent this luxury, Kalam had three options, each of which raised its own complications. He could return the file to the UPA government for reconsidera- tion, although he would be obliged to earliest opportunity. Together with its political strategy, the NDA’s legal strategy was also set into motion. Four writ petitions were filed in the Supreme Court by candidates who had been elected to the dissolved assembly—one each by members of the BJP and the JDU, the third by a ‘rebel’ LJP member and the fourth by an independent candidate. They contended that the President’s proclamation dissolving the assembly was unconstitutional, as the President could not dissolve an assembly that had not yet been convened—not least on the basis of a governor’s report that was grounded in mere suspicions of horse-trading. One of the early skirmishes involved the issue of whether, as the petitioners contended, the court could issue notice to the governor seeking his participation in the proceedings. The court concluded that it could not do so (since Article 361 of the Constitution states that the gover- nor cannot be held answerable to a court for the exercise of his powers), but Books/ Extract/ The Cases That India Forgot/ Chintan Chandrachud TheSCmadesomedamning remarksabouttheroleofthe governorButaSinghinthemat- ter.ThethenCJIsaidSingh misledthecouncilofministers. 24 January 13, 2020
time when the verdict would be delivered. Considering the nature of the cases, we will not be able to give judgment before October 18. We may come out with a short judgment, if necessary, before 18 October and the detailed judgment will follow. Otherwise, there would be one main judgment.’ This was interpreted as suggesting that the court would pronounce its decision early if the dissolution was held unconstitutional, and would do so later if the dissolution was upheld. A s it happened, the Supreme Court issued a brief order one week later, the last day before the court closed for the Dussehra break, with detailed reasons to follow. The tim- ing of the decision aligned with the expected outcome. The court held that the President’s proclamation dissolving the Bihar Assembly was unconstitutional. However, more surprising than the outcome was the remedy. Despite the unconstitutionality of the proclamation, the court chose not to reinstate the assembly since election preparations were afoot. As the next elections had already been planned and considerable resources had been expended, no legal remedy was made available to those that filed the proceedings. (One op-ed at the time described this as akin to the court issuing a ‘conviction without a sentence’.) However, what the BJP and the JDU were denied in terms of legal remedies was compensated through the political traction that they secured upon the court’s endorsement of their position. Conversely, the court’s decision as seen as a rebuke to the governor and the President, and by implication, the that it could nevertheless scrutinize his reports and the proclamation issued by the President. According to the Supreme Court, the governor enjoyed immunity, but his decisions and reports did not. President Kalam keenly followed the proceedings in the Supreme Court, and was not pleased with the way his decision was presented to the court. Kalam noted that the court had not been fully apprised of his discussions with the government, and the sequence of events that had taken place when he was in Moscow. This case offered a good example of how the courts often struggle to keep up with the pace of politics. On 3 Septem- ber 2005, the Election Commission announced dates for fresh elections in Bihar. Elections would take place in four phases, with voting to commence on 18 October and to conclude on 19 November. By that stage, though the writ petitions had been filed, the hearing at the Supreme Court had not even begun. This presented a quandary for the court. If it decided that the dissolution of the assembly was unconstitutional, what remedy could it offer the petitioners if the next elections were already under way or concluded? Could it re- constitute the dissolved assembly despite the people’s fresh mandate and the time and money spent on the next elections? Matters would be more complicated if the fresh mandate was vastly different from the mandate within the dissolved assembly, as the court would effectively be reinstating a government that had lost its popular legitimacy. Ultimately, the Supreme Court swiftly concluded the hearing by 29 Septem- ber 2005, over a period of six days. Poli- tical parties were left in suspense on the last day of the hearing, as the bench observed, ‘We want to allay impressions and conjectures and surmises about the ItwasPMManmohanSinghwho persuadedPresident APJAbdul Kalamnottoresign.The President—respectedand popular—escapednarrowly. TheRameshwarPrasadcase, andthecircumstances surroundingit,involvestwo stateelections,twoSC decisions,resignationsand near-resignations. | INDIA LEGAL | January 13, 2020 25
of the argument was simple—it is impossible to dissolve an assembly that has not yet come into existence. Chief Justice Sabharwal rejected this argument on the basis that no provision of the Constitution stipulated that an assembly could only be dissolved after its first meeting. The argument would also yield unintended consequences, for it could imply that there would be a constitutional stalemate in the event that no political party came forward to stake a claim to the government following an election. If no political party staked a claim to form the government, the assembly could not be convened, and therefore could also not be dissolved to enable fresh elections to be called. While the court rejected the argument that the President could never dissolve a legislative assembly before its first meeting, it held that the decision to dissolve the assembly was unconstitutional in that instance. The dissolution UPA government. As would have been expected, the NDA demanded the removal or resignation of Governor Buta Singh following the court’s decision. Four days after the court’s decision, Singh travelled to Delhi (ostensibly on a personal trip to visit ailing relatives). However, there was widespread speculation that Singh used the opportunity to meet with leaders from the UPA government and the Congress party to consider an appropriate res- ponse to the court’s decision. Media reports suggested that the leadership seriously considered asking the governor to resign. However, following deliberations, it was determined that Buta Singh would not be asked to resign and would continue in office at least until the Sup- reme Court issued the detailed reasons for its decision. The Congress leadership arrived at this conclusion after considering the possibility of Singh’s resignation being perceived as an admission of res- ponsibility, which would not bode well for the party’s fortunes in the forthcoming elections in Bihar. T he people of Bihar delivered a more decisive verdict in the election of October-November 2005. The JDU and the BJP collectively gained fifty-one additional seats from their performance in the February elections, most of which were at the expense of the RJD and the LJP. This gave the NDA a comfortable majority in the assembly. Governor Singh had to ‘swallow his pride’ and invite the NDA to form the government. Nitish Kumar was sworn in as chief minister. Governor Singh's position remained vulnerable to any criticism that could be forthcoming from the Supreme Court’s reasoned decision. The court’s reasoned decision came about two months later, on 24 January 2006, two days before Republic Day. It was argued on behalf of the four MLAs that the President lacked the authority to dissolve the assembly in circumstances where the first meeting of the assembly had not yet taken place. The logic was based exclusively on Governor Buta Singh’s reports. The governor lacked any credible material in support of his conclusion that an attempt was being made to win over opposition MLAs through bribes and other allurements. Chief Justice Sabharwal also observed that the governor’s primary task was simply to ascertain whether a political party or alliance could form a stable government. There were well-established conventions as to the pecking order the governor should follow in inviting parties or alliances to stake a claim to form the government when a single party did not secure an absolute majority. For example, the largest pre- poll alliance would take priority, followed by the single largest party, there- after followed by the largest post-poll alliance. The governor’s role, according to the chief justice, was not to ensure good governance or promote transparency in politics. Those were tasks that were better performed by the opposition and the electorate than the governor. The court also made some damning remarks about the role of the governor through this episode. According to the chief justice, the governor misled the council of ministers, resulting in them advising the President to issue a proclamation dissolving the assembly. The presidential proclamation could not be Books/ Extract/ The Cases That India Forgot/ Chintan Chandrachud ThepeopleofBihardelivereda decisiveverdictintheelectionof October-November2005.NDA gotamajorityandNitishKumar wassworninasCM. 26 January 13, 2020 UNI
Much to the relief of the government, Singh resigned after taking the Republic Day salute on 26 January 2006. While the Supreme Court did not go so far as to directly censure President Kalam, there were murmurs as to whether he would accept moral responsibili- ty for what was, in the final analysis, a judgement striking down his proclamation dissolving the Bihar Assembly. Kalam seriously contemplated resig- ning, going as far as discussing his resignation with his brother and his close advisers. He even kept a letter of resignation ready. It was Prime Minister Manmohan Singh who persuaded the President not to resign, stating that it could result in the UPA government itself toppling. A governor and a state government were casualties during this episode. The President—in particular, among India's most respected and popular Presidents—escaped only narrowly. justified on the ‘suspicion, whims and fancies of the Governor’. The court did not stop with the conduct of the gover- nor, but went as far as imputing ulterior motives: ‘The action of the governor was a mere pretence, the real object being to keep away a political party from staking a claim to form the government.’ The Supreme Court’s decision was not unanimous, with two of the five judges on the panel dissenting from the majority view. According to Justice Pasayat, the governor was not obliged to remain a silent spectator in the face of attempts to form a government through dishonest means. He would have grant- ed a wide margin of discretion to the governor: ‘However suspicious [the] conduct of the governor may be, and even if it is accepted that he had acted in hot haste it cannot be a ground to term his action as extraneous.’ For Justice Balakrishnan (who would later become chief justice), a government formed by foul means could hardly be described as a democratically elected government. In his view, the majority's decision was antithetical to, rather than in furtherance of, democratic values. T he Supreme Court’s decision provoked serious deliberations within the Congress party and the UPA government. Any ideas of filing a petition in the court seeking a review of its decision were shot down on the basis that there was a risk the court would further reprimand the governor, or worse still, the government. Damage control was the order of the day. Given the court's remarks about the role of the governor, Buta Singh’s position appeared untenable. Widespread expecta- tions were that he would either resign or be removed by the government. However, Singh remained obdurate in the initial moments following the decision. When asked about his inten- tions following the court's decision, Singh indicated that he would take the Republic Day salute in Patna. The UPA government was increas- ingly concerned that if it attempted to remove him or compel him to resign, there was a risk that he would turn against the government. Singh ‘knew too much’, and there was ‘no way of knowing what Singh could do, or how he could be controlled after demitting office’. It had long been suspected that the RJD (which was a member of the UPA) had pressured the UPA government to dissolve the assembly on the eve of an attempt to form the state government. The UPA government hardly wanted this confirmed in excruciating detail by one of the protagonists of this episode. The Cases That India Forgot Author: Chintan Chandrachud Published by: Juggernaut Books Pages: 229 Price: `599 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com ThedecisionoftheSCbench ledbyCJIYKSabharwal(above) wasnotunanimous,withtwoof thefivejudgesdissentingfrom themajorityview.Theywere JusticeBalakrishnan(above, right)andArijitPasayat. | INDIA LEGAL | January 13, 2020 27
Spotlight/ Police Crackdown ROTESTERS against the Citizenship (Amendment) Act (CAA) in UP have seen the ugly and brutal face of the state police. The bel- ligerence with which it attacked people has shocked and dis- mayed all. In some districts, the police inflicted lathi blows even on those found standing outside their houses or returning from work. At other places, the cops are alleged to have barged into homes and assaulted the inmates with a vengeance. Four people arrested in Muzaffarnagar were freed after 10 days with the police admitting that they had found no evidence linking them to the violence on December 20. In doing what it did, the police snatched away a citizen’s democratic Lawless in UPThestatepolicehascrackeddownonCAA protestersandmindlesslyarrestedallandsundry. Manyhavebeenchargedwithvarioussectionsof theIPCandaskedtopayheftypenaltiesforrioting By Atul Chandra in Lucknow P 28 January 13, 2020
right to either protest or pray, as happened in the case of 55 Sikh devotees who were booked for taking out nagar kirtan (religious procession) to com- memorate Martyrs’ Day of Guru Gobind Singh’s sons in Pilibhit. Not only are demonstrations against the new citizenship law banned in the state, even writing against it on Twitter or Facebook can land one in jail. The violence that took place in Lucknow and other parts of the state on December 19 and 20 in protest against the police crackdown on Jamia Millia students in Delhi cannot be condoned. A peaceful demonstration by civil society members in Lucknow, for instance, turned ugly when some unidenti- fied elements torched vehicles, including OB vans belonging to some media houses. Some set fire to a police outpost in Khadra area. In some 21 districts, vandals hijacked the protest from peaceful, civil society demonstrators, leading to 19 deaths and causing damage to private and public property. These included Lucknow, Kanpur, Rampur, Gorakhpur and Meerut. Internet services in all the affected districts remained snapped for several days. Over 1,000 people have been arrested for their alleged involvement in the violence, although many were just silent protesters. Prominent among those arrested in Lucknow include retired IPS officer SR Darapuri (a 77-year-old can- cer patient), Congress worker and social activist Sadaf Jafar (a mother of two), and activist Deepak Kabir. Social activists Arundhati Dhuru and Madhvi Kuckreja were detained when they went to enquire about some of the detainees. Although the above three were not involved in the violence, a look at the charges levelled against them shows the extent to which the police went in order to crush democratic rights. On December 19, Darapuri was put under house arrest in Lucknow to prevent him from reaching the protest venue and later arrested. He was charged under Sections 147, 148, 149 (rioting, armed with a deadly weapon Over1,000peoplehavebeenarrestedfor theirallegedinvolvementintheviolence, althoughmanywerejustsilentprotest- ers.Tosaythatthepolicewantedtoinstil fearwouldbeanunderstatement. | INDIA LEGAL | January 13, 2020 29 Photos: UNI
or anything which if used as a weapon may cause death), 152 (obstructing public servant when suppressing riot), 307 (attempt to murder), 323 (voluntarily causing hurt), 504, 506 (intentional insult, provoking someone to disturb public peace), 332 (voluntarily causing hurt), 353 (assaulting public servant to deter from discharge of duty), 188 (dis- obeying order promulgated by public servant), 436 (mischief by fire or explo- sive substance), 120-B (criminal conspiracy to commit an offence punishable with death and 427 (causing mischief to damage property of `50 and above) of the IPC. The manner in which the police stoo- ped to send Darapuri to jail shows that his basic human rights were also violated with impunity. According to Magsay- say Award winner Sandeep Pandey, Da- rapuri, who is also a Dalit rights activist, was produced before a magistrate who refused to order his imprisonment. Ano- ther magistrate then ordered him to be jailed. Deepak Kabir was arrested when he went to enquire about Sadaf Jafar’s whereabouts. Advocate Mohammad Shoaib, also a septuagenarian, was put behind bars without being produced before a magistrate, Pandey said. Most of the IPC sections invoked against Darapuri have also been used against Sadaf Jafar, but she faces additional charges under Sections 3 and 4 of the Prevention of Destruction of Public Property Act of 1984 and Section 7 of the Criminal Law Amendment Act of 1932. Pandey was also detained for protesting outside his house, but as he did not carry a mobile, the police could- n’t find any evidence to frame him and set him free. T he extent of police high-handed- ness can be gauged from the arrest of four men in Meerut, where the SP is alleged to have told Muslim protesters to go to Pakistan. One of the four men, a government clerk, was jailed even though he was in office on the day of the rioting. The other three were taking their ailing relatives to hospital when they were arrested. All four remained in jail for 11 days and were released only after their family members proved their innocence. While the police are now serving notices on protesters/rioters and collecting hefty penalties from protesters for damaging property, they obviously have no moral obligation to pay compensation for causing mental trauma to those FREEDOM OF EXPRESSION? (Left) A protest against CAA in Lucknow (Below, L-R) SR Darapuri, Sadaf Jafar and Deepak Kabir Spotlight/ Police Crackdown 30 January 13, 2020 UNI
wrongly jailed and their families. Show- cause notices have been served to around 150 protesters in Lucknow alone. Identified from CCTV and video footage, they have been asked to explain within a week why their properties should not be attached for damaging public property. Unlike their Delhi counterparts who have approached the High Court for the appointment of a claims commis- sioner to assess the damage to properties due to the CAA protests, the UP police have estimated the losses on their own. Without any legal backing, the administration has sought recovery of an estimated `4 crore from the accused in Lucknow alone. L ike the Meerut police’s “mistake” of sending innocents to jail, many other accused across the state face the challenge of proving their non- involvement in the violence. In Firoza- bad, show-cause notices have been sent to 26 persons. Families of some of them have pleaded innocence. These accused are already in jail and chances of their coming out seem remote as they are too poor to pay up. The police are reluctant to admit that some of the 20 killed in violence were victims of police firing. Director- General of Police of UP OP Singh re- peatedly denied that the police fired on the protesters until a video surfaced of a policeman aiming his gun to fire at a mob in Kanpur’s Yateemkhana area. Kanpur SSP Anant Deo later clarified that the police fired four rounds in the air in self-defence. He insisted that no one had died of shots fired by policemen. Regarding three deaths due to bullet injuries, he said that only forensic examination would confirm if the shots were fired by policemen. Meanwhile, in Bijnor, the police admitted that a youth died when they resorted to firing. Like the Kanpur SSP, Bijnor SP (Rural) Vishwajit Srivastava reportedly said that a 23-year-old man died when a policeman fired at a violent mob in self-defence. Bungling by the police took a curious turn in the case of Sheroz, a 23-year-old who died of bullet injuries in Shamli on December 20. While no one has been named as an accused, the FIR mentions Section 304, IPC (culpable homicide), and not 302 (murder). Although a post- mortem examination was carried out on Sheroz’s body, his family had not been given the report till January 1 night. The police has now pinned the blame on the Popular Front of India (PFI), a Delhi-based organisation linked to SIMI and its political front, the Social Demo- cratic Party of India, for masterminding and inciting the violence. Praveen Ku- mar, IG (Law and Order), said at a press conference that “25 persons affiliated with the PFI have been arrested across the state for their involvement in different criminal activities”. The state government has also sent a report to the Union home ministry seeking a ban on the PFI. The report is based on PFI activities in the state over the last 10 years. The PFI reportedly started its activity around 2010 in Lucknow, Barabanki, Bahraich, Muzaffarnagar, Shamli and Meerut. Waseem Ahmed, president of the outfit, and two of its members—Nad- eem and Ashraf—have been arrested for their role in the Lucknow protests on December 19. Six PFI members, including the organisation’s founder- member of western UP, Maulana Shadab, are said to have been arrested from Shamli. The police claimed to have recovered pamphlets with objec- tionable content from them. In Meerut, two PFI members, Amzad and Javed, have been arrested. The police are invoking a 2011 High Court order which directed the government to make vandals compensate the destruction of property. Ironically, the government had a memory loss when a Hindu mob led by Bajrang Dal activists damaged property and killed police Inspector Subodh Kumar Singh in Bulandshahr over alleged cow slaughter in 2018. The IT cell of the UP police proved its bias when it took days to track down one of the accused who kept sending messages through a cell phone. Clearly, UP is under police rule and not of an elected government. And so far, there is no indication that they will be questioned for their atrocities. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Director-GeneralofPoliceofUPOPSingh(right)deniedthatthepolicefiredonthe protestersuntilavideosurfacedofapolicemanaiminghisguntofireatamobin Kanpur.PraveenKumar,IG(LawandOrder),blamedPFIforallcriminalactivities. | INDIA LEGAL | January 13, 2020 31
My Space/ Low-cost Drug Formulations Dr KK Aggarwal N public interest, the National Pharmaceutical Pricing Authority (NPPA) has used its extraordinary powers to ensure availability of 21 low-cost drug formulations. Some are essential drugs, while others are first-line drugs used in national health programmes, the availability of which was getting affected for the last few years. The drugs were not available as pharmaceuticals had limited or no- profit margins. Limited stocks often used to finish by mid-year. Doctors were, therefore, forced to write prescriptions for costly and often less-effective alternatives. These include costly antibiotics for the replacement of standard penicillin prophylaxis for rheumatic fever. Two other drugs which were in short supply are furosemide (to treat fluid build-up due to heart failure, liver scarring or kidney disease) and chloroquine (a malaria drug). The NPPA noted: “Many companies have applied for discontinuation of the product on account of high cost of the raw material for these drugs. Access to these drugs cannot be jeopardised. Also, we did not want the public to be forced to switch to costly alternatives.” However, the NPPA could change the pricing only under extraordinary circumstances. It has no routine powers to revise the prices of drugs and hence took a series of meetings and permis- sions to do so. It had to first establish the prices and notify the changes, moni- tor the prices of non-scheduled drugs and formulations and oversee the implementation of the provisions of the Drugs (Price Control) Order (DPCO). A December 13 order said: “NPPA is cognizant that as per the prevailing policy, cost-based pricing is not feasible. To address the situation arising due to repeated price control, one-time price increase of 50% from the present ceiling price is being considered in public interest as an exceptional measure. Accor- dingly, NPPA invoked extraordinary powers in public interest under para 19 of DPCO 2013 for upward revision of the ceiling prices of the 21 scheduled formulations of 12 drugs by giving one- time increase of 50% from the present ceiling price.” Para 19 gives power to the NPPA to control the prices of drugs that are not under the National List of Essential Medicines under extraordinary circumstances in public interest. It was on May 30, 2013, that the ministry of chemicals and fertilisers delegated powers under specified paras of DPCO to NPPA. NPPA receives regular applications for The Price of Health TheNationalPharmaceuticalPricingAuthorityhashikedthepricesof12life-savingessential drugstoensuretheiravailabilityasmanufacturerswereunabletosustainproductivity I FOR A LARGER CAUSE The price hike of essential drugs will lead to low-cost affordable healthcare in India wallpaperflare.com 32 January 13, 2020
upward price revision under Para 19 of DPCO, 2013. These applications cite various reasons such as increase in API cost, increase in cost of production, exchange rates, etc., resulting in unviability in sustained production and marketing of various drugs. In January 2019, the NPPA deliber- ated upon 49 such applications consist- ing of 72 formulations and shortlisted 19 for further examination. In another meeting in March 2019, it constituted a committee which recommended that these 19 formulations could be considered for an upward price revision to ensure availability of these medicines. In another meeting in June 2019, the NPPA examined the recommendations of the committee and took a view that the revision of ceiling prices should be undertaken only in exceptional circumstances as there was neither a precedent nor any formula prescribed for it. Acc- ordingly, NPPA further shortlisted 12 formulations and referred the issue to the Standing Committee on Affordable Medicines and Health Products (SCAMHP), NITI Aayog. I n a meeting in November 2019, SCAMHP said that there was a need to revisit the prices of the 12 formulations by allowing a one-time 50 percent increase from the present ceiling price. In another meeting later, the Committee recommended an additional nine formulations for revision of their ceiling price. Finally, at a meeting on December 9, 2019, the NPPA deliberat- ed upon these 21 formulations and said they were low-priced drugs and under repeated price control. Most of these drugs are used as a first line of treatment and are crucial to the public health programme of the country. Many companies had applied for discontinuation of the products due to unviability. NPPA noted that while ensuring affordability, access cannot be jeopardised and the lifesaving essential drugs must always remain available to the public. It was felt that unviability of these formulations should not lead to a situation where they become unavailable in the market and the public is forced to switch to costly alternatives. The 50 percent hike is a welcome move as all these drugs were low-priced and leaving the market purposefully or due to no profitability. This move of the government will allow the country to move towards low-cost affordable healthcare. —The writer is President, Confederation of Medical Associations of Asia and Oceania, and Heart Care Foundation of India UNI Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com BCG vaccine: Each dose is `8.75; used to prevent TB. Benzathine benzylpenicillin powder: For injection of 12 lakh units, each pack is for `17.84; for injection of six lakh units, it is `11.81 and for injection of 10 lakh units, it is `7.64. These formulations are used as three injections weekly for prevention of rheumatic heart disease. Once started, a child must get this injection regularly up to the age of 35. Chloroquine: A 150 mg tablet costs `1.16 (anti-malaria drug). Dapsone: A 100 mg tablet costs `0.35 (anti-leprosy drug). Furosemide: A 40 mg tablet to cost `0.74; furosemide injection: 10 mg/ml (1 ml injection): `2.43. The drug is used to remove fluid from the body during heart/kidney failure. Metronidazole oral liquid: 200 mg/5 ml (1 ml injection): `0.44; 200 mg metronidazole tablet: `0.68; 400 mg metronidazole tablet: `1.25; metronidazole injection 500 mg/100 ml (1 ml injection): `0.20. The drug is used for anaerobic infections and amoebic loose motions. Ascorbic Acid (Vitamin C): 500 mg tablet: `1.34. Co-trimoxazole: A 400 mg tablet to cost `0.77. A most cost-effective antibiotic and a must for HIV-positive persons. Pheniramine: An injection of 22.75 mg/ml (10 ml pack): `1.67; used for cough and cold. Prednisolone: One percent 1 ml drops: `4.92; a steroid. Clofazimine capsule: A 50 mg capsule costs `2.13, while a 100 mg one costs `3.63; used for treatment of leprosy. Apillfor allseasons The National Pharmaceutical Pricing Authority has fixed the prices of the following drugs: IN A BIND A doctor attending a patient in Kerala. As the life-saving and essential medicines were unavailable, doctors prescribed costly and often less-effective alternatives | INDIA LEGAL | January 13, 2020 33
Focus/ Religious Sentiments 34 January 13, 2020 HE rendezvous of Bolly- wood stars with law viola- tions appears to be on the rise. While one rarely heard of any old time me- ga star being hauled up for allegedly violating the law or hurting the sentiments of any community, such reports are now coming in with increasing regularity. Superstar Salman Khan could top the list with stiff competition from San- jay Dutt, but several other stars have been making an appearance in courts and police stations. Many, however, rush to resolve the issue at the first sign of trouble. The latest in the series is the controversy involving Bollywood actor Raveena Tandon, filmmaker Farah Khan and comedian Bharti Singh for allegedly hurting the religious sentiments of a community during a comedy show. The Amritsar police lodged a case against them on the basis of a complaint by Sonu Jafar, president of the Christian Front of Ajnala Block, along with video footage of the show that was aired on Christmas Eve. The complainant alleged that “the religious sentiments of Chris- tians have been hurt” by certain references made by them on the show. Shortly after that, another complaint was booked against the three on charges under Section 295-A (deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion and religious beliefs). This was registered on a complaint from the chairman of Samson Brigade Christian Youths, Vijay Goria, a resident of Kam- boj Nagar in Ferozepur. He said the three had allegedly made fun of the word “Hallelujah” while trying to pronounce it. The trio was slapped with a third case for the same alleged offence on the complaint of Ashish Shinde, who heads an NGO in Maharashtra’s Beed district. The case was transferred to Malad police station in Mumbai where the three accused live. Evidently rattled by the spate of cases, Tandon and Khan took to Twitter to offer apologies. “Please do watch this link. I haven’t said a word that can be interpreted as an insult to any religion. The three of us (Farah Khan, Bharti Singh and I) never intended to offend anyone, but in case we did, my most sincere apologies to those who were hurt,” said Tandon in a tweet while sharing a clip of the programme. YouTube has, however, blocked the video. Khan too tweeted: “I respect all religions, and it Starry Trouble ThreecaseshavebeenlodgedagainstBollywoodpersonalities RaveenaTandon,FarahKhanandBhartiSinghforallegedly hurtingthereligioussentimentsofacommunityonaTVshow By Vipin Pubby in Chandigarh COURTING TROUBLE (From left) Raveena Tandon, Farah Khan and Bharti Singh offered apologies on Twitter; (facing page) actress Payal Rohatgi was in trouble for uploading her video T
| INDIA LEGAL | January 13, 2020 35 would never be my intention to disre- spect any. On behalf of the entire team, Raveena Tandon, Bharti Singh and myself.... we do sincerely apologise.” While these three may have found themselves in a mess unintentionally, there are others who invite trouble to stay in the headlines. A week prior to the registration of cases against the three, another actress and former Bigg Boss contestant Payal Rohatgi was involved in a controversy. She uploaded her own video which contained deroga- tory references to the Gandhi family, including Motilal Nehru, Jawaharlal Nehru, Indira Gandhi and other members of the family. She was picked up and sent to judicial custody for eight days. Her lawyers took up the case in higher courts and she was bailed out the next day but the proceedings against her will continue. W hile she has been courting trouble, some like Salman have been casual about following the law. A Mumbai court in 2018 stayed a bailable warrant issued against him in a 2002 hit-and-run case, in which the government’s appeal against his acquittal is pending before the Supreme Court. He was accused of running his car over some persons sleeping on the pavement in Bandra. One person died. The trial court awarded him a five- year jail term. Salman is also facing a criminal case for killing two blackbuck in Rajasthan. These animals are revered by the local Bishnoi community. The shooting took place in 1998 when he was with fellow actors Saif Ali Khan, Tabu and Sonali Bendre during the shoot of the film Hum Saath Saath Hain. He was sentenced to five years’ imprisonment in 2018 and appealed to a higher court for reversal of the trial court order. But apart from his personal forays with the law, Salman also has his share of controversies relating to hurting religious sentiments. A film produced by him, and initially named Loveyatri, attracted protests from Hindu outfits who said it was an insult to the sacred festival of Navratri. Even the name change did not appease the protesters who lodged a complaint against him and six others at Meethanpur police station in Muzaffarpur on charges of hurting the sentiments of Hindus. The complaint was filed by them under Sections 295 (injuring or defiling place of wor- ship), 298 (uttering words with deliberate attempt to hurt religious sentiments), 153 (provoking with intent to cause riots), 153 (B) (assertions prejudi- cal to national integrity) and 120(B) (criminal conspiracy) of the IPC. Considering that a section of Indians is sensitive to religious sentiments (and there is no dearth of those who file cases merely for attracting attention and gar- nering publicity), Tandon, Khan and Singh should have been more circum- spect, even though they might have taken the joke too far. They are now making all attempts to get out of the sticky situation. They met Cardinal Oswald Gracias, the archbishop of Bombay. After the meeting, Khan tweeted: “His Eminence Cardinal met us. We apologised and asked him to forgive our mistakes and he very graciously accepted our apology.” Cardinal Gracias said in a statement: “As also reported in the media, director- choreographer Farah Khan and actor Raveena Tandon met me to convey their AOL apologies over the ‘Backbencher’ web show. They expressed their unquali- fied apologies for hurting the sentiments of the Christian community. Comedian Bharti Singh, who is out of country, sent an apology on an audio clip. They also handed me a written apology. It is reg- rettable that the prayer of praise was treated so disrespectfully. I was told this was due to ignorance. I accepted their sincere apologies and prayed with them. I was assured that they will be very careful in the future. The Christmas sea- son is one of joy, peace and reconcilia- tion. With these sentiments, I closed the matter.” Hopefully, Bollywood stars and other opinion leaders will be more circum- spect and the general public more toler- ant in the new year. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com BollywoodstarSalmanKhanalsohashis shareofcontroversiesrelatingtohurting religioussentiments.Afilmproducedby himattractedprotestsfromHinduoutfits whosaiditwasaninsulttoNavratri.
He stood on the shoulders of literary giants, after all, he discov- ered and published most of them— Michael Ondaatje, VS Naipaul, Rys- zard Kapuscinski, Haruki Murakami, Gabriel García Márquez, Salman Rushdie, Kazuo Ishiguro, Stieg Larsson (the Millennium trilogy), John Le Carre, Toni Morrison, Pope John Paul II, Patti Smith, and even low-brow but hugely successful books like Fifty Shades of Grey. Ishiguro, winner of the Nobel Prize in Literature, once said: “There are some very good publishers in this world. Sonny Mehta is a great one.” Mehta, who passed away last week aged 77, was considered the world’s best publisher. His 32-year tenure at Alfred Knopf, after publishing stints in London, earned him that reputa- tion when his discerning eye and love of literature inspired him to commission writers who would go on to earn fame and nine Nobel prizes. He published Rushdie’s Midnight’s Children when at Picador, and the author recalls “how great Sonny’s editorial skills were. We went through the draft line by line, and he wanted clarifications, demanded more depth and improved the text beyond all measure”. Mehta leaves behind his wife, Gita, sister of the Odisha Chief Minister, Naveen Patnaik, and a son, Aditya. When Swedish tech-giant Ericsson was forced to lay off thousands of local workers in a cost-cutting exercise, there were no protests or strikes. That is largely due to the country’s unique Job Security Council, TRR. In Sweden, employers pay part of their salary to the councils, which acts like an insurance policy against unexpected retrenchment, till they find a new job. Which is why Sweden’s workforce barely ever experiences the stress and trauma of losing a job. The councils are run in a 50-50 partner- ship between employers and trade unions. For businesses and government, the system makes it easier for Swedish businesses to get rid of jobs made redundant by technology. That also explains why Sweden has the highest re-em- ployment rate in the developed world. The councils also provide professional coaches who re-train and counsel workers to help them find jobs matching their skills and needs. In some cases, Swedish workers have seen their earn- ings actually rise after being laid off. 36 January 13, 2020 International Briefs A Unique Safety Net The big buzz in the global tech world is the proposed merger of the technology that drives the messaging apps, Instagram, Whats- App and Messenger, all owned by Facebook. The proposal was revealed in a leaked memo but insiders have long known that it was one of Facebook founder and chief executive Mark Zuckerberg’s secret projects. Once the leak was out, Zuckerberg admitted that the project was on, saying it would make it easier for users to send posts between the three platforms. Experts point out that the move will create a unified tech behemoth which increases the risks of privacy breaches and makes it more difficult to take any action against any of the three in case of legal infringements. Already, US senators have argued that Facebook wields too much power and influence, while The Wall Street Journal reported that the Federal Trade Commission may intervene to prevent the apps being integrated. Zuckerberg has already testi- fied once before the US Senate Committee on the usage of personal data by Facebook in rela- tion to the Cambridge Analytica data breach. The Great Merger There’s one year-end list everyone who is anyone reads; it is ex-US President Barack Obama’s favourite books, music and shows over the past year. His picks showed his intellectual depth and eclectic tastes. Most interesting were his list of the best music he heard in 2019, which, apart from the usual suspects—Beyonce, Solange, Frank Ocean—had an artist from India, Prateek Kuhad (above, centre). Kuhad gained popularity and fame for his composition cold/mess which went viral after its release in 2018, and was the song picked by Obama. Kuhad has moved from playing single-stage music at indie con- certs to global concert tours, without making much of an impact in the country of his birth. Now, with Obama’s endorsement, he is poised to be a big music star. After the list came out, Kuhad’s cold/mess has been trending in Ame- rica and elsewhere as music fans download his releases. The singer/ composer was blown away. On his Facebook page, he said: “This just happened and I don’t think I’ll sleep tonight. Totally flipping out. I have no idea how cold/mess even reached him but thank you @barackobama, thank you universe I didn’t think 2019 could’ve gotten better, but da- mn was I wrong. What an honour.” Obama’s best books list also included another Indian connection—Delhi- based William Dalrymple’s (above, right) The Anarchy, a riveting story of the rise of the East India Company. Literary Legend The Ultimate List
Sabka Saath-Sabka Vikas-Sabka Vishwas For Convenience&Transparency ofSugarcaneFarmers “Webportal” www.caneup.in & “E-Ganna App” E-Ganna INAUGURATIONBY Yogi Adityanath Chief Minister, Uttar Pradesh Features Survey, weighing, slip, calendar and all information related to sugarcane. Sugarcane weight via SMS and message when slip is issued. Ban on sugarcane mafia and sale of sugarcane in a transparent manner. KisanBhai, FirstvisitERPWebportal www.caneup.in Clickonthelink ‘E-Gannasystem’ onthewebportal Clickon‘KisanBhaiViewYourData’ andgetalltheinformationby selectingthedistrict,factory, villageandname. Use a helmet when driving a two-wheeler InformationandPublicRelationsDepartment,UttarPradesh
Global Trends/ Pakistan 38 January 13, 2020 N para 66 of the detailed judgment that sentenced former military dic- tator Pervez Musharraf to death, Justice Waqar Seth, the chief justice of Peshawar High Court and head of the special court, observed: “We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan, and be hanged for 03 days.” In doing so after reportedly finding the former general guilty of treason, Justice Seth may have just pushed the powerful Pakistan military establishment and the Imran Khan government into a tight corner. His judgment provoked sharp criticism from both the army and the government. Law Minister Farogh Naseem, who had previously served as Gen Musharraf’s lawyer, said Justice Seth not only “violated judicial conduct” by issuing the “bizarre order” but also was “mentally unfit and incompetent” to be a judge of any court. He added that the government has decided to move the Supreme Judicial Council of Pakistan (a high-powered body that hears cases of misconduct against judges) with the plea “that such a judge has no authority to be a judge of any high court or the Supreme Court”. Attorney General Anwar Mansoor Khan said that the sanity of the author of the detailed verdict in the Musharraf treason case is “questionable” and called for his trial and removal under Article 209 of the Constitution. However, a few days later, the Imran Khan government decided against filing a reference against Justice Seth because it would have caused serious problems—both at the national and international levels. At the domestic level, the move would have incurred a huge political cost and embarrassed Prime Minister Imran Khan, who had all along been a vocal supporter of an independent judiciary Judging the Judge TheattacksbyPakistan’slawministerandotherofficialsagainstJusticeWaqarSeth,who sentencedGenMusharraftodeath,mayhavehandedIndiaanewopeningintheJadhavcase By Asif Ullah Khan ISTRONG VERDICT Justice Waqar Seth, chief justice of Peshawar High Court kpja.edu.pk
| INDIA LEGAL | January 13, 2020 39 and as an opposition leader had vehe- mently called for Gen Musharraf’s trial for suspending the Constitution. Apart from the political cost, there was a legal hitch as to how the government could challenge the special court’s verdict when it is the complainant in the case. Only the aggrieved party can file an appeal in the apex court for expung- ing remarks of the special court’s judge. Another question raised by legal experts was whether an appeal can be filed in respect of para 66 of the judgment, which is not the operative part of the majority judgment. The major concern was that it would weaken Pakistan’s case against alleged Indian spy Kulbhushan Jadhav at the International Court of Justice (ICJ) at The Hague. The ICJ, on India’s plea, had directed Pakistan to “take all measures at its dis- posal” to ensure that Jadhav would not be executed pending a final decision in the case, and to inform the court of all the measures taken in implementation of that order. However, the ICJ did not uphold India’s submissions to direct Pakistan to take steps to annul the decision of the military court, release Jadhav and facili- tate his safe passage to India. But it found that Pakistan was under an obligation to provide, by means of its own choosing, effective review and reconsid- eration of the conviction and sentence of Jadhav, so as to ensure that full weight was given to the violation of rights set forth in Article 36 of the Vienna Convention. The ICJ’s decision to suspend but not annul the execution of the death penalty awarded to Jadhav and asking Pakistan to ensure “effective review and reconsid- eration of his conviction and sentences” was hailed as a victory in Pakistan. H owever, the ICJ observed that Article 199, Paragraph 3, of the Constitution of Pakistan had been interpreted by the Supreme Court as limiting the availability of such a review for a person who was subject to any law relating to the armed forces of Pakistan, including the Pakistan Army Act of 1952. Here, Pakistan cited a decision of November 2018, where Justice Seth, as part of a two-member bench of the Peshawar High Court, had reversed sentences of the military courts against 74 convicts, 50 of which were death sentences, to stress that courts in Pakistan are independent and operate without any influence from the government or the military. Mohammed Rizwan, a Toronto- based journalist of Pakistani origin, and a fellow at Pragmora Institute, Canada, told India Legal: “It helped Pakistan’s case as the ICJ did not annul Jadhav’s death sentence because Justice Seth’s verdict established that decisions by the military courts can be reviewed in Pak- istan’s superior judiciary. Thus Jadhav is also free to file a review petition.” The Imran Khan government made a laughing stock of itself when the law minister and attorney general of Pakistan questioned the “mental balance” of Justice Seth. After 2009, the Pakistani judiciary has become robust and independent because of upright judges who have refused to toe the line of the military establishment, Rizwan told India Legal. He said the Khan government did not realise the gravity of the situation when Justice Seth was nominated as presiding judge of the special court by AnyactionagainstJusticeSeth,in thePervezMusharrafcaseverdict, wouldweakenPakistan’scase againstallegedIndianspyKulbhushan Jadhav(right)attheICJ. UNI

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